In "A Child is Missing" we report all Federal Hague Convention Child Abduction Cases. We also provide information to help legal practitioners understand the basic issues, discover what questions to ask and learn where to look for more information when there is a child abduction that crosses country boarders.

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Wednesday, August 31, 2011

In Judge v Williams, 2011 WL 3759476 (E.D.N.C.) the matter was before the court on Petitioner Brian Anthony Judge's Application for an award of Expenses following the court's order, after a hearing, directing the return of his minor child, E.L.W.J. to the Republic of Ireland. On August 4, 2011, Petitioner timely filed his Application for Award of Expenses, pursuant to 42 U.S.C. 11607(b)(3), along with his affidavit and supporting documentation and an affidavit from his counsel.

The District Court observed that ICARA provides: Any court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of the proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. 42 U.S.C. 11067(b)(3). It concluded that under the plain language of the statute, the court had the duty to order the payment of necessary expenses and legal fees unless Respondent satisfied her burden of showing that such an order would be clearly inappropriate. In this case, Respondent, who appeared at the hearing without counsel, failed to offer any response, and therefore the court could not find that she had met her burden in establishing that an award of expenses to Petitioner was clearly inappropriate. Petitioner sought $3,974.86 for expenses incurred by him personally, and submitted an affidavit supported by receipts. His expenses included the costs Petitioner incurred flying to North Carolina and back to the Republic of Ireland along with the costs of his lodging in North Carolina ($2,648.63), the costs Petitioner incurred flying E.L.W.J. from North Carolina to the Republic of Ireland ($844.30), and the cost of Petitioner's rental car in North Carolina ($481.93). The court found all these expenses to be reasonable and necessarily related to Petitioner's efforts to have E.L.W.J. returned to the Republic of Ireland. Petitioner also sought $673.84 for expenses incurred on his behalf by the law firm Womble Carlyle Sandridge & Rice, PLLC . Petitioner's counsel represented Petitioner pro bono in this proceeding, and accordingly, Petitioner was not seeking attorney's fees. He was seeking the expenses WCSR incurred on his behalf, including the filing fee for this action ($350.00), the cost of photocopies ($64.10), and his counsel's travel expenses to attend the hearing ($259.74). Petitioner's counsel submitted an affidavit detailing those expenses. The court found the expenses were reasonable and were related to the return of E.L.W.J. Accordingly, the court found that the total amount of $4,648.70 in expenses incurred by Petitioner or on his behalf to be reasonable and necessary to his efforts to have his child returned to the Republic of Ireland.

In Chavez v Sequera, 2011 WL 3666581 (W.D.Tex.) Plaintiffs filed their "Original Petition for Writ of Habeas Corpus and for Return of a Child Victim of International Abduction" in which they contended that on August 13, 2010 a female minor (N.H.S.) was with her parents in Ciudad Juarez when her parents were shot and killed. Juarez police allegedly delivered N.H. S. to Plaintiffs--N.H. S .'s paternal grandparents. The next day, while the minor child was left with her aunts, Defendants--the minor child's maternal grandparents and other relatives-allegedly acted together to physically overpower the aunts, abduct the minor child, and remove her to El Paso, TX. Plaintiffs subsequently initiated custody proceedings in the First Family Court of the Judicial District of Bravos, Chihuahua, Mexico, which they contended was a court of proper venue and represented that the court granted them temporary legal custody of N.H.S. in absentia since Defendants were "avoiding detection" in both Mexico and the United States. On March 4, 2011, Defendants were served with the Petition. Defendants had until March 25, 2011 to file an answer, but failed to do so. Fed. R. Civ. P. 12(a)(1)(A)(i). On March 31, 2011 the Clerk of the Court filed an "Entry of Default." As a result, Plaintiffs asked that the Court grant default judgment in their favor. The district court noted that a defendant must serve a responsive pleading within 21 days after being served with a summons and complaint. Fed. R. Civ. P. 12(a)(1). When a defendant fails to otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default. Fed. R. Civ. P. 55. If a plaintiff's claim is not for a "sum certain" or for an amount that can be made certain by computation, application for the entry of a judgment by default must be made to the court. Fed.R.Civ.P. 55(B)(2). It indicated that on April 18, 2011, with all parties present, the Court held a hearing in order to apprise Defendants of the consequences of failing to answer Plaintiffs' Petition. At that time the Court explained its limited role under the Hague Convention and made it clear to Defendants that it was not the Court's duty to make an independent determination about the best interests of the child nor to opine as to the substantive legal proceedings relating to the issue of custody which were before the Mexican legal system. Further, the Court informed Defendants that they had failed to comply with the law by filing an answer timely.

Defendants did not formally appear either through counsel or pro se and did not file responsive pleadings to the Petition or to the Motion for Default Judgment. Based on the pleadings, the Court found that the allegations in Plaintiffs' Petition were facial sufficient to state their claim and merit the relief they were seeking. As a result, the Court granted the Motion for Default Judgment. It directed that that Defendants contact Plaintiffs' counsel, and arrange for the physical return of N.H. S. to Plaintiffs not more than seven (7) days following the service of its Order. It further ordered, among other things, that should Defendants fail to timely return physical custody of N.H. S. to Plaintiffs, upon notification from Plaintiffs of such deficiency, the Court may enlist the services of the United States Marshal to assist Plaintiffs in carrying out the provisions of its Order.

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This blog is published by Joel R. Brandes Consulting Services, Inc.
Joel R. Brandes is the author of the "Law and the Family New York 2d", and "Law and the Family New York Forms" (Thomson-West). He is not a lawyer.
Joel R. Brandes Consulting Services, Inc. is not a law firm, or a lawyer and does not give legal advice.
Notice: The information on this site pertains to New York and Federal law only and is offered as a public service. It is not intended to give legal advice about a specific legal problem, nor does it create an attorney-client relationship. Due to the importance of the individual facts of every case, the generalizations we make may not necessarily be applicable to any particular case. Changes in the law could at any time make parts of this web site obsolete. This information is provided with the understanding that if legal advice is required the services of a competent attorney should be sought.

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What this Blog is About

This blog is dedicated to all of those parents, relatives and friends of persons whose children are missing and have been abducted by a parent, to another country. The Convention on the Civil Aspects of International Child Abduction, commonly referred to as the Hague Convention, established procedures to enable parents to obtain the prompt return, to their country of habitual residence, of children who have been unlawfully removed or retained in another country. In this blog we will focus on providing information with regard to what to do where there is a child abduction that crosses country boarders.

This Blog is written by Joel R. Brandes, the author of Law and the Family New York, Second Edition Revised, and Law and the Family New York Forms (Thomson-West), Bari Brandes Corbin, of the New York Bar, and co-author of Law and the Family New York, Second Edition, Revised, Volumes 5 & 6 (Thomson-West), and Evan B. Brandes, of the New York and Massachusetts Bars, and a Solicitor in New South Wales, Australia. The authors write the annual supplements to Law and the Family New York, Second Edition Revised, and Law and the Family New York Forms